An independent developer has founded a coalition, codenamed "Operation Anthill," to help the iOS developer community fight back against legal threats from patent licensing companies like Lodsys.

Mike Lee, a former Apple employee and founder of Netherlands-based development initiative Apperstdam, on Monday announced plans for the coalition, which he called "an 11th hour rally," Ars Technica reports.

"Operation Anthill" has hired technology attorney Michael McCoy to put together the Appsterdam Legal Defense Team, as well as a related fund. McCoy will put into motion the coalition's efforts to protect independent software developers with a "three-pronged attack:" legal action, lobbying for legislative reform and mobilizing a "massive media marketing campaign" to raise public awareness.

Lee has pulled together a staff or roughly 60 people to help with the effort.

"Intellectual Ventures and their ilk are many tentacled beasts who use thousands of shell companies to do their dirty work. When they send blood-sucking tentacles like Lodsys into our community, we need to cut them off," Lee wrote. "Eventually the head will figure out to stop losing tentacles."

He went on to explain the coalition's codename, noting that stepping on an anthill in Texas draws an attack from swarming, biting ants. "You could, in theory, crush them one by one, but its much easier to just avoid anthills," he said.

"Let App Makers be as the ants of East Texas, minding their business until someone invades their anthill. Then Swarm! Swarm! Swarm!" he continued. "We will let the patent trolls know: if you attack one indie, you attack all indies, and we will file every motion we can against you, we will attack your patents, and we will show you for the mafioso thugs you are."

Earlier this year, Lodsys drew accusations from the iOS development community of being a patent troll when it filed a suit in East Texas against a number of smaller developers for infringement of a patent related to in-app purchasing. The court in the East Texas district has become the default court for "patent trolls" because it generally favors patent holders and has a quick turnaround time with its cases.

Lodsys, a non-practicing entity, has since added larger developers to its suit, such as gaming giant Electronic Arts and Rovio, the maker of the popular "Angry Birds" game.

Apple has filed a motion to intervene on the case, but is awaiting approval from the court. As is to be expected, Lodsys has opposed the motion.

"We're going after Lodsys for sure, but understand the ultimate target is Intellectual Ventures," Lee told the publication, adding that "they are the Mordor to these trolls," a reference to the villain's lair in J.R.R. Tolkien's "The Lord of the Rings" trilogy.

Though Lee has yet to line up other developers for the coalition, he has issued a call to his colleagues in the industry: "You have two options: join us, or wait to be next." According to him, the purpose of Monday's announcement was "to rally and cheer the community. To give people hope. To get people ready."

McCoy will put into motion the coalition's efforts to protect independent software developers with a "three-pronged attack:" legal action, lobbying for legislative reform and mobilizing a "massive media marketing campaign" to raise public awareness.

Their only real chance is to effectuate legislative relief. The US Courts have a proven track record of validating these bullshit obvious patents with loads of prior art. Outlawyering Intellectual Ventures will possibly slow them down, but it will not solve anything, and would be a waste of resources.

I say pour all or most of the money into clever, targeted legislative reform and "massive media marketing" - including informative television spots - that will tell the story to the public that patent law as practiced suffocates, rather than encourages, innovation. You need public outrage. As a solution, I think it's a good idea to validate patents only if there's products being made from them. Software patents and business method patents should probably be totally invalidated. We just don't need people brainstorming and patenting their brilliant "inventions" such as "method for enabling internet connected purchases of merchandise from inventory with clicks of mouses and presses of keys" with no intention but to trap some unsuspecting entrepreneur who is actually producing something and contributing something to this world.

The law will never change without a hue and cry from the public, and that won't happen unless you shove it in their faces. repeatedly. for a long time. What's the last you heard of Net Neutrality? I can't remember, either. The public consciousness blitz faded, and now the people and, hence, the politicians have forgotten about it. Don't let that happen with patent reform.

A political campaign would be a tragedy. The threat of patents is what keeps companies inventing. In fact, this recent name calling of "non-practicing entities" and "trolls" started with the Blackberry RIM litigation. The CEOs of RIM didn't think they needed to pay the inventors of push email because RIM was the first to commercialize push email. Rather than pay the inventors for their technology RIM decided to hire expensive lawyers from New York and spend the inventors into the ground. The patent holder ran out of money and sold his patent to an investment group who beat RIM to a pulp. When RIM got their a$$es handed to them in court RIM took the low road and resorted to complaining and whining and talking to politicians. This was the beginning of the fallacy that inventors should make products or they are trolls. That's bull $hit. Inventing has nothing to do with selling. The fact that RIM commercialized push email, doesn't mean they invented it. The patent system is purposely set up to reward inventors, not commercializers. The patent system creates a race to advance technology. What makes the patent system work is that you don't have to a big entrenched company to enter the race. Whoever discloses the invention first wins. In fact, we want non-practicing people to be able to enter the race. Large companies often stop inventing when they take over the market. That may not be true for Apple, but it is certainly true for lazy people like RIM. RIM could have paid the inventor of push email 5 million for a license. Instead RIM spend tens of millions fighting the patent system and complained when it ended up losing 500 million. Instead of complaining and trying to change the patent system RIM should have spent more time inventing; if they had done that, maybe they wouldn't be driving down the road of obsolescence.

My comment to the iOS developers is, if you don't want to infringe the patent, take the patented feature out of your products. For instance, if you don't want to pay Lodsys for in-app purchases, then don't offer your customers in-app purchases or argue that you have a license through Apple. However, arguing that you shouldn't have to pay an inventor to use their intellectual property because they don't sell products is ignorant. And using an inventors patented technology without paying is just as immoral as stealing.

Yes, I know some of you will argue that the patent shouldn't have been granted. My response would be, if it isn't valid, prove it. The United States Patent and Trademark Office thought it was patentable. The USPTO actually paid an Examiner to review the patent and the prior art to make the determination. Why would I believe that some computer blogger making an off-the-cuff remark has a clue about what is patentable. If you don't know what 35 U.S.C. 102 and 103 says and understand how the courts apply those laws, you have no idea whether a patent is valid or not.

As for Intellectual Ventures being an "anthill"......All I have to say is that the thieving, whining, non-inventive salesman like RIM created this beast by using lawyers to avoid paying inventors a reasonable price for their inventions. It didn't use to be that way. The 1800s was probably the heyday of big companies seeking out small, non-practicing inventors and buying up their patents. Thomas Edison acquired numerous patents this way. The inventors often took that money and went right back to the lab to invent something else. I'm not sure how we got to where we are today. How come everyone thinks that inventors are evil if they just invent and ask to be compensated for inventing. That seems reasonable to me. The inventors at Apple don't work in the sales department, but they still expect to be paid for inventing. Why can't a small inventor or non-practicing inventor expect to be compensated for inventing? The argument that you need a sales department to be eligible to invent is a dangerous road to go down. Inventing is the goose that lays the golden egg in the U.S. Be careful not to shoot it.

A political campaign would be a tragedy. The threat of patents is what keeps companies inventing.

How dare those small independent developers go around demanding changes to the IP system to support development eh? The important thing is that the IP system should support patent lawyers! How dare they attack Lodsys' patents validity, they should just pay up and stop whining about obvious patents that should never have been granted.

Who do they bloody think they are?

It would be a tragedy if software patents were to no longer be granted, we'd be back in the dark ages of the 1980s when pretty much everything important about computer science was developed. Nobody would have created the world wide web if they couldn't patent it and make oodles of money! Nobody would have created the spreadsheet, or the LALR parser! None of the networking protocols, no object orientation, no programming languages at all - we'd all be programming using toggles to push bits directly into main memory! No, without software patents none of the systems we use today could possibly exist, because nobody would be interested in making them.

In fact what we need is MORE patents. We need to get the millions of software developers round the world who waste time creating pointless code that does stuff and get them to make patents. With another 10 million people making patents full time just imagine the wonders we could produce!

Their only real chance is to effectuate legislative relief. The US Courts have a proven track record of validating these bullshit obvious patents with loads of prior art. Outlawyering Intellectual Ventures will possibly slow them down, but it will not solve anything, and would be a waste of resources.

I say pour all or most of the money into clever, targeted legislative reform and "massive media marketing" - including informative television spots - that will tell the story to the public that patent law as practiced suffocates, rather than encourages, innovation. You need public outrage. As a solution, I think it's a good idea to validate patents only if there's products being made from them. Software patents and business method patents should probably be totally invalidated. We just don't need people brainstorming and patenting their brilliant "inventions" such as "method for enabling internet connected purchases of merchandise from inventory with clicks of mouses and presses of keys" with no intention but to trap some unsuspecting entrepreneur who is actually producing something and contributing something to this world.

The law will never change without a hue and cry from the public, and that won't happen unless you shove it in their faces. repeatedly. for a long time. What's the last you heard of Net Neutrality? I can't remember, either. The public consciousness blitz faded, and now the people and, hence, the politicians have forgotten about it. Don't let that happen with patent reform.

What you don't understand is that there is a standard for patentability and the Courts can't change the law. The reasons these patents are held valid is because they are valid. Your allegation of "bullshit" is completely unfounded. I've seen people say a patent is total Bullshit when it has been (i) held valid by the patent office, (ii) held valid by a district court, (iii) held valid by the Federal Circuit, (iv) re-examined by the patent office and upheld, (v) held valid a second time by a district court, and (vi) held valid again by an appeals court. Just because you are annoyed that someone else has a patent on something simple that you would like to do, does not mean that that simple invention is not patentable. Our patent laws have created the most technologically driven economy in the world. Your standard of living (assuming you live in the developed world) is directly tied to the patent system. What a tragedy to see you disparage the system that has brought you such good fortune.

More importantly, it sounds like you are the kind of person that thinks the commercial developer (i.e., the infringing business) should be able to dictate to a court whether a patent is valid or not. I suggest you move to Russia. That's exactly how their patent system works. In the U.S. we prefer that the judge apply the law regardless of the emotions or wallets of either party. Our system is a pretty damn good system. If you aren't convinced of that, you need to get out in the world and experience another legal system.

How dare those small independent developers go around demanding changes to the IP system to support development eh? The important thing is that the IP system should support patent lawyers! How dare they attack Lodsys' patents validity, they should just pay up and stop whining about obvious patents that should never have been granted.

Who do they bloody think they are?

It would be a tragedy if software patents were to no longer be granted, we'd be back in the dark ages of the 1980s when pretty much everything important about computer science was developed. Nobody would have created the world wide web if they couldn't patent it and make oodles of money! Nobody would have created the spreadsheet, or the LALR parser! None of the networking protocols, no object orientation, no programming languages at all - we'd all be programming using toggles to push bits directly into main memory! No, without software patents none of the systems we use today could possibly exist, because nobody would be interested in making them.

In fact what we need is MORE patents. We need to get the millions of software developers round the world who waste time creating pointless code that does stuff and get them to make patents. With another 10 million people making patents full time just imagine the wonders we could produce!

</sarcasm>

You exemplify the naive clouded thinking that I'm trying to thwart. I have no problem with the small developer putting up a legitimate fight. The problem I have is that Lodsys is being attacked because they are a "non-practicing entity". I have a problem with someone that wants to infringe a valid patent by lobbying to change the patent system.
The reason patents and patent litigation are so expensive is because of rich, lazy companies tried to defeat the little guy by spending them into the ground. They fought valid patents on the assumption that they could win by spending more money. They miscalculated because investors like Intellectual Ventures came swooping in and financed the little guy and took all the profits. Now you have a bunch of rich guys mud slinging.
By the way, Lodsys isn't interested in the pittance that a developer might provide them. Lodsys wants another paycheck from Apple. If you want to talk about why Lodsys are ass holes, address the real issue, which is that they sold Apple a license and then turned around and sued Apples's developers. Complaining about the licensing behavior is justified. I'm totally for the developers and Apple on this one. However, setting up a consortium to destroy the patent system is stupid, naive, and idiotic. It misses the mark in so many regards, I don't know where to stop.

I never said the Courts misapplied the law. My point is that the law needs to change via the legislature - hence, my suggestion that "legislative relief" is their "only real chance." Thus, unless the law is changed, these "bullshit" outcomes will not change.

And, yes, the system that you defend so dearly lets obvious things get patented not just once, but dozens and dozens of times by different people. I never said our patent system doesn't do some things right - it clearly does. However, it cannot be denied that the system is broken, which leads to tragic outcomes. There is room for improvement. I never said I disrespected the courts, or wanted them to misapply the law. I said fix the law.

I am ready to make a donation to the effort. Where do I send my check?

I agree that the political/PR effort is as important as the courts. It's time for Intellectual Vultures to get their comeuppance. But more importantly, it's time for meaningful patent reform. President Obama just mentioned it in a speech today, that now that the debt ceiling matter is settled it is time to get back to important legislation like patent reform.

I reject the all or nothing approach taken by patent status quo apologists on this forum--that we have to leave things as they are to protect the little guy. That by making a distinction between patent brokers and inventors the inventors will lose. It's time to change this nineteenth century institution into a twenty-first century one. Intellectual property matters, but wholesale trading on that creative genius is the "derivative market" of the invention world. Protect and reward the inventor, not the the greed merchants who masquerade as his defender.

How dare those small independent developers go around demanding changes to the IP system to support development eh? The important thing is that the IP system should support patent lawyers! How dare they attack Lodsys' patents validity, they should just pay up and stop whining about obvious patents that should never have been granted.

Who do they bloody think they are?

It would be a tragedy if software patents were to no longer be granted, we'd be back in the dark ages of the 1980s when pretty much everything important about computer science was developed. Nobody would have created the world wide web if they couldn't patent it and make oodles of money! Nobody would have created the spreadsheet, or the LALR parser! None of the networking protocols, no object orientation, no programming languages at all - we'd all be programming using toggles to push bits directly into main memory! No, without software patents none of the systems we use today could possibly exist, because nobody would be interested in making them.

In fact what we need is MORE patents. We need to get the millions of software developers round the world who waste time creating pointless code that does stuff and get them to make patents. With another 10 million people making patents full time just imagine the wonders we could produce!

</sarcasm>

I admit that it is really hard to prove how valuable the patent system is. However, you do realize that the Founders of the United States thought it was important enough to put it in the U.S. Constitution. You can make yourself believe that all those people working in software weren't driven by patents, but the evidence suggests otherwise. There is a clear correlation between the strength of a country's patent system and the amount of innovating that occurs in that country. Software developers may not be thinking about this each day they write code. However, the markets that are protected by patents create the value chain that allows developers to get paid. Take for example the iPad. If Apple didn't think it could protect some of its market share, it couldn't have justified the investment to create the iPad. Apple can't spend billions of dollars creating a product that someone else can just copy. RIM tried to invent their own iPad and it has failed. Samsung and Google have had much better success ripping off Apple's products. Hopefully the patent system will be a huge impediment to Samsung and Google.

Before you attack this brave effort with misinformation, become informed. Our only choice is to fight against the flaws in the patent system. Patents are different than copyrights. Most software (but not all) should be copyrighted- not patented. The same guys behind Lodsys and other shell companies backed by intellectual ventures recently wrote a 600 plus book on cooking- probably so they could sue mcdonalds the next time they came out with a new sandwich. And that is the most productiive work they've actully done. Listen to this podcast and then come back and post again.

I admit that it is really hard to prove how valuable the patent system is. However, you do realize that the Founders of the United States thought it was important enough to put it in the U.S. Constitution. You can make yourself believe that all those people working in software weren't driven by patents, but the evidence suggests otherwise. There is a clear correlation between the strength of a country's patent system and the amount of innovating that occurs in that country. Software developers may not be thinking about this each day they write code. However, the markets that are protected by patents create the value chain that allows developers to get paid. Take for example the iPad. If Apple didn't think it could protect some of its market share, it couldn't have justified the investment to create the iPad. Apple can't spend billions of dollars creating a product that someone else can just copy. RIM tried to invent their own iPad and it has failed. Samsung and Google have had much better success ripping off Apple's products. Hopefully the patent system will be a huge impediment to Samsung and Google.

I have a problem with someone that wants to infringe a valid patent by lobbying to change the patent system.

But there is no issue whatsoever with software developers lobbying for a change to the patent laws to end the patenting of software. There's nothing unreasonable about it, or unfair about it. Existing patents would inevitably have to stand for the next decade or so, but then this disastrous experiment with software patents would be done with. This is precisely what politics is for, to allow laws to be changed to better serve society.

Quote:

By the way, Lodsys isn't interested in the pittance that a developer might provide them. Lodsys wants another paycheck from Apple. If you want to talk about why Lodsys are ass holes, address the real issue, which is that they sold Apple a license and then turned around and sued Apples's developers. Complaining about the licensing behavior is justified. I'm totally for the developers and Apple on this one. However, setting up a consortium to destroy the patent system is stupid, naive, and idiotic. It misses the mark in so many regards, I don't know where to stop.

Technically that's not what happened. Intellectual Ventures sold Apple a license. Then 'sold' the patent to Lodsys who went off to sue the indies.

And don't exaggerate, this consortium isn't out to destroy the entire patent system. They're not concerned with pharma patents. They're probably not concerned with design patents. They're concerned with software patents, and as my examples showed, software patents have never been and will never be critical to innovation in software.

I admit that it is really hard to prove how valuable the patent system is. However, you do realize that the Founders of the United States thought it was important enough to put it in the U.S. Constitution. You can make yourself believe that all those people working in software weren't driven by patents, but the evidence suggests otherwise.

Software wasn't even held to be patentable in the US until the 80s, except in a very few special cases. None of the examples, even those like the web which are later were patented - so clearly none of the people working on them felt it was needed.

The evidence is entirely against you that patents are key to software innovation.

I am ready to make a donation to the effort. Where do I send my check?

I agree that the political/PR effort is as important as the courts. It's time for Intellectual Vultures to get their comeuppance. But more importantly, it's time for meaningful patent reform. President Obama just mentioned it in a speech today, that now that the debt ceiling matter is settled it is time to get back to important legislation like patent reform.

I reject the all or nothing approach taken by patent status quo apologists on this forum--that we have to leave things as they are to protect the little guy. That by making a distinction between patent brokers and inventors the inventors will lose. It's time to change this nineteenth century institution into a twenty-first century one. Intellectual property matters, but wholesale trading on that creative genius is the "derivative market" of the invention world. Protect and reward the inventor, not the the greed merchants who masquerade as his defender.

My complements on making a well-reasoned response.
I agree it would be better if we could take the "brokers" out of the picture. However, U.S. big business has created this problem. Big businesses won't license a patent from a little guy even if they infringe it. Instead of paying a little guy a million dollars for an invention that is clearly infringed, the big company will spend 2 million to fight it. Intellectual Ventures has flipped the table. Intellectual Ventures will call their bluff and raise them two. Intellectual Ventures has been able to buy up an enormous number of patents that are worth less than 5 million dollars because small inventors can't get investment money to litigate unless the damages are at least in the 15-20 million range. Intellectual Ventures is big enough that they can actually do to the companies what the companies did to the little guys. Intellectual Ventures can brandish a 20 million dollar war chest of cash and say "you either pay up or I will spend 20 million in litigation, sue you for legal fees, and get treble damages for the infringement.

The answer isn't to change the patent law. If small inventors can't win in litigation and they can't sell their patents to brokers, you will have effectively destroyed the ability of small inventors to participate in the patent system. Over time, big companies will form a cabal and the patent system will be ruined.

The answer is simple. Companies need to start buying up patents from the little guys before Intellectual Ventures does. Throw the little guy a bone instead of litigating him into the ground.

The shame in this whole Lodsys scenario is that Apple did pay Lodsys for a license. The bastards at Lodsys turned around and sued Apple's developers on a patent that was already licensed to Apple. The legality of it is not clear and I'm not sure how it will come out. Regardless, the guys at Lodsys are scum bags.

Please don't support the Consortium. It won't help. The consortium is fighting the wrong battle. If they win, we risk undermining our technology sector.

Maybe someday I'll have to move to China. Lately I've seen China doing everything it can to bolster its patent system and the U.S. is doing everything it can to destroy its patent system.

When Patents Attack! - This American Life http://j.mp/qptC6R This Excellent Podcast is directly related to this topic!

It would be great if that whole Patent Universe was more Just, Sane!!!

My initial reaction is that it's a good thing to see the Developers Organize so that it's All For One and One For All... That way they all have a better chance against abuse... But I also realize that all those cases are very nuanced and that, if they are rushed, there is a greater likelihood of injustice, where the side with more $$, and or better lawyers wins...

There seems to be an increase of case against Apple!!! I'd like to think that Apple does their homework, yet the cases keep coming! I suspect that it's because we all keep hearing about Apple's Billions of $$ in Cash!!! That Cash excites some folks to go after Apple, hoping for "OK, here is a few million $$, just go away" type of a Settlement!!!

The answer isn't to change the patent law. If small inventors can't win in litigation and they can't sell their patents to brokers, you will have effectively destroyed the ability of small inventors to participate in the patent system.

Ash, you're taking everyone's arguments too far. Most people would agree that the wholesale elimination of the patent system is a bad idea. You're fighting a straw man, and a pretty weak one at that. What is called for, however, is reform of the bad parts - e.g., obvious patents that slip through the cracks, software patents, and business method patents.

Can you make a cogent argument that pursuing those reforms would ruin everything and make you want to live in China?

But there is no issue whatsoever with software developers lobbying for a change to the patent laws to end the patenting of software. There's nothing unreasonable about it, or unfair about it. Existing patents would inevitably have to stand for the next decade or so, but then this disastrous experiment with software patents would be done with. This is precisely what politics is for, to allow laws to be changed to better serve society.

Technically that's not what happened. Intellectual Ventures sold Apple a license. Then 'sold' the patent to Lodsys who went off to sue the indies.

And don't exaggerate, this consortium isn't out to destroy the entire patent system. They're not concerned with pharma patents. They're probably not concerned with design patents. They're concerned with software patents, and as my examples showed, software patents have never been and will never be critical to innovation in software.

When technology is developing rapidly everyone likes to think the technology would develop rapidly without the patent system. In the 1800s there were a lot of patents related to trains because that was the rapidly developing technology. There is nothing inherently unique about software. Software patents are methods implemented in a computing environment. They should be just as patentable as a method for making a chemical compound.
The problem I have with the consortium is that it alleges that Intellectual Ventures is the problem and that we need to rid the system of brokers. These "patent reform measures" are not limited to software. They attack the broker, which is the only market the small guys have since they can't afford to fight the big companies in court and the big companies won't buy their patents. What is the small inventor suppose to do?

Intellectual Ventures selling a license to Apple and then selling the patent to another entity that indirectly sues Apple is a scum bag thing to do. However, you can't get rid of the Broker unless Apple is willing to buy from the small inventor. The solution is for companies to start buying up patents before Intellectual Ventures does. Changing the patent system to prevent small inventors from having a market to sell their patents is not the correct solution.

My comment to the iOS developers is, if you don't want to infringe the patent, take the patented feature out of your products.

So your advice is for developers to completely cave in. Back off and gut your product the moment anyone comes along with a claim, no matter how outrageous. (And to be sure, Lodsys' claim is quite outrageous.) Nice. That's the spirit that makes America not so great anymore. Thanks for ruining our country.

There is nothing inherently unique about software. Software patents are methods implemented in a computing environment. They should be just as patentable as a method for making a chemical compound.

There speaks a man who has never produced a piece of software in his life. The method for making a chemical compound would be akin to the source-code of software, which is not patentable, but is protectable by copyright. A software patent is akin to an entire class of reactions - it's like patenting oxidation. You've no explanation whatsoever for the mass of creativity that occurred in software when there was no patent protection. All you can do is ignore it, because it doesn't fit your argument. Stop denying reality and accept that patents have had no positive impact on software innovation.

Quote:

The problem I have with the consortium is that it alleges that Intellectual Ventures is the problem and that we need to rid the system of brokers. These "patent reform measures" are not limited to software. They attack the broker, which is the only market the small guys have since they can't afford to fight the big companies in court and the big companies won't buy their patents. What is the small inventor suppose to do?

From a legal perspective they attack them, because from a legal perspective they are the greatest risk to independent developers. From a legislative perspective they will no doubt be going after the entire software patent domain.

The NPEs are a problem in many ways - because they can use the flimsiest patents in against weak defendants with no risk of counter-attack, and no risk of bad PR. The only way to retaliate is to actively seek to invalidate their patents, which is exactly what Anthill is saying they will do. It's also completely within the existing law and an entirely appropriate response - your attempt to paint it otherwise demonstrates your complete hypocrisy.

Quote:

Intellectual Ventures selling a license to Apple and then selling the patent to another entity that indirectly sues Apple is a scum bag thing to do. However, you can't get rid of the Broker unless Apple is willing to buy from the small inventor. The solution is for companies to start buying up patents before Intellectual Ventures does. Changing the patent system to prevent small inventors from having a market to sell their patents is not the correct solution.

You are presupposing that anthill is trying to ban the sale of patents, that would be impossible because you could simply sell the companies that held them. You have no evidence that this is anthill's aim whatsoever. Changing the scope of what can be patented however does not require a constitutional amendment but only regular legislative change.

Ash, you're taking everyone's arguments too far. Most people would agree that the wholesale elimination of the patent system is a bad idea. You're fighting a straw man, and a pretty weak one at that. What is called for, however, is reform of the bad parts - e.g., obvious patents that slip through the cracks, software patents, and business method patents.

Can you make a cogent argument that pursuing those reforms would ruin everything and make you want to live in China?

The cogent argument is quite simple:
The inventions created by small inventors have been and always will be a critical component of the patent system. Without small inventors, big companies eventually get together and agree what they will and will not do to each other's markets. A small inventor doesn't have any market share so a small inventor will never be invited to the "oligarchy party." Instead, the small inventor will try and beat the big companies to new technology to either make them pay or lure market share by the advancement in the technology. This explains why the small inventor is critical. The patent system has worked this way for more than 200 years. The reason our economy beat the British economy in the 1800s is because we had thousands of "nobodies" trying to get patents on mechanical devices like steam engines. The British made the patent system more accessible to the affluent and well trained. In contrast, the U.S. was handing out patents to anyone that could think of something novel. Big companies would then buy up those patents or design around them and get their own patents.

The current proposed reforms have a misguided belief that software is unique and the patent system is unnecessary for software. They mistake rapid development in software as evidence that the patent system is not necessary. However, software is just the "railroad of our time". The fact that the technology is developing so quickly isn't evidence that the patent system isn't necessary, it is evidence that it is working.

The software industry perceives a problem with "brokers" such as Intellectual Ventures who buy up software patents from small inventors who have no one else to sell to. For some reason, the current software industry has decided to fight against small inventors instead of buy up their patents. Big companies have learned that if they fight small inventors with multi-million dollar lawsuits the small inventors go away because they can't afford the fight. The brokers have come in to fill the void. Now the only thing a small inventor can do is sell his or her patents for pennies on the dollar to a broker who then matches the capital resources of a big companies and plays the game.

The current reforms attempt to eliminate the broker, but they don't do anything to stop the underhanded tactics by big companies to avoid paying small inventors. Moreover, small inventors are the only group in this scenario that is not represented in politics. I see the rights of the small inventor being slowly eroded year after year. For example, the recent decision in the Ebay case did away with permanent injunctions for non-practicing inventors. This decision was targeted at the "brokers" but it had a huge damaging impact on small inventors. Small inventors rarely have market share and so they don't sell products and can't get a permanent injunction. In essence, Ebay took away the very thing that the Constitution says an inventor should have, which is the right to exclude (i.e., a permanent injunction). This decision was clearly directed at "brokers," but it hit hard on non-practicing inventors. If the software community succeeds in destroying "brokers" the small inventor won't anyone to sell to. A small inventor isn't going to spend $15,000 on a patent if he or she can't enforce the patent or sell it. When that happens, we'll begin the slow but sure process where companies establish their markets and then collaborate to maintain them (if you want a good example of this, check out the Cement industry). I know it is hard to believe that such a thing will happen when you are experiencing the rapid growth that we have now. But just you wait. If you remove the brokers without fixing the litigation and permanent injunction problem, you will ruin the patent system. Policies take a decade or so to have their effect, but it will happen. It will happen right under your nose and you won't know it until it's too late.

The way I see it, the software industry is in the process of ruining a perfectly good 225 year old patent system.

There speaks a man who has never produced a piece of software in his life. The method for making a chemical compound would be akin to the source-code of software, which is not patentable, but is protectable by copyright. A software patent is akin to an entire class of reactions - it's like patenting oxidation. You've no explanation whatsoever for the mass of creativity that occurred in software when there was no patent protection. All you can do is ignore it, because it doesn't fit your argument. Stop denying reality and accept that patents have had no positive impact on software innovation.

From a legal perspective they attack them, because from a legal perspective they are the greatest risk to independent developers. From a legislative perspective they will no doubt be going after the entire software patent domain.

The NPEs are a problem in many ways - because they can use the flimsiest patents in against weak defendants with no risk of counter-attack, and no risk of bad PR. The only way to retaliate is to actively seek to invalidate their patents, which is exactly what Anthill is saying they will do. It's also completely within the existing law and an entirely appropriate response - your attempt to paint it otherwise demonstrates your complete hypocrisy.

You are presupposing that anthill is trying to ban the sale of patents, that would be impossible because you could simply sell the companies that held them. You have no evidence that this is anthill's aim whatsoever. Changing the scope of what can be patented however does not require a constitutional amendment but only regular legislative change.

I never said the legislative reform wasn't legal. I'm saying the attempted reform will ruin a perfectly good patent system that has been around for 225 years and has made this country what it is. You are absolutely correct that the people of this country are free to persuade their legislatures to *uck it up.

Your assume wrong. I have written software. I even signed up as an apple developer and designed my own iOS app but haven't gotten around to coding it up.

Please spare me the lecture on patents. I'm a patent attorney.

I do have an explanation for the mass of creativity during the period when there was allegedly no software patents. First of all, lets get one thing straight, "software patents" are really nothing more than a method implemented on a computing device. Such methods are no different than any other method. Methods require a series of acts that must be performed to effectuate a desired result. Whether the steps involve displaying items on a screen and interactions with an interface or whether the steps involve mixing one reagent with another agent, they are all method steps. And by the way, I've actually gotten a patent allowed where the point of novelty in the method was an oxidation step. (it was a method for preparing a carbon nanomaterial).
Secondly, in the United States there never has been a rule against patenting "software methods". In the early 80s there was uncertainty about how to draft proper "software" claims and whether the claims would be enforceable. However, uncertainty isn't the same thing as saying that software wasn't patentable. We just didn't know how it was all going to work out.
Thirdly, the major driving force behind software in the 80s was the need to operate new hardware. Patent attorneys knew how to draft patent claims to the hardware and since the software was tied to the hardware, it made sense to claim the hardware. But make no mistake, the patent system was a huge part of the advancement of the software industry. It took some time, but patent attorneys eventually developed techniques for claiming computer-implemented methods (i.e., software) and courts resolved the ambiguity in favor of patentability.

So you want evidence that the patent system works for software? How about the fact that the software industry exploded in the U.S. as compared to Europe. Europe tried to take a much stricter approach to software patents. In the end, I don't think they succeeded (because the reality is that it is rather difficult to distinguish a computer implemented method claim from other types of method claims). Nevertheless, while the U.S. was breaking new ground with their "computer-implemented methods" the EU was announcing that they wouldn't have anything to do with it. The software industry in Europe is a joke compared to the U.S. Do you need a corollary example? The EU has strong patent protection on pharmaceuticals and medical devices but you can't get patents on medical procedures. You can in the U.S. Guess what? The research on medical procedures in the EU pales in comparison to the U.S., but the EU is very strong in big pharma and medical devices. I could go on but.........

So your advice is for developers to completely cave in. Back off and gut your product the moment anyone comes along with a claim, no matter how outrageous. (And to be sure, Lodsys' claim is quite outrageous.) Nice. That's the spirit that makes America not so great anymore. Thanks for ruining our country.

That is not what I'm suggesting at all. The first step is to evaluate the claims. If the patent is invalid then invalidate the patent. If the patent is valid, either license the patent or modify the product so that it doesn't infringe the patent.

I never said Lodsys claim wasn't outrageous. To be sure they are a bunch of scum bags for suing Apple's developers when they know that Apple has already paid for a license.

I don't know how many times and different ways I can say this, but my beef with this Consortium is that they want to eliminate "non-practicing inventors" and "brokers." No matter how much I wish brokers weren't necessary, they are. They provide a critical form of balance in a war that was started by companies not willing to pay small inventors a reasonable fee for their inventions. The patent system isn't broken. The licensing system is broken. Start paying small inventors for their inventions and you won't have to deal with bastards like the people from Lodsys.

You could, but people have to be open to reason and be able to admit they might be wrong in order to be willing to change their position.

But thank you for the well reasoned comments and the examples. As you pointed out (and was pointed out to me years ago and has stuck with me every since and I also point out) of the very few things the founding fathers put into the US Constitution, patents were considered key to the success of the country!

I wish more people would actually read the US Constitution (whether you are an American or not is irrelevant) - much like with Apple, what was left out is just as significant or more significant than what was put in. It really is a fairly simple document - but the concepts and framework it established founded the greatest nation this world has yet to see. I keep hoping we don't screw it up by overcomplicating things but the current bunch in Washington seems hell-bent on doing exactly that by expanding the federal government far larger than was ever intended. And for many of the repercussions we are now experiencing - if people were also not as ignorant as to the reasons the founding fathers originally established the federal/state government ratios they would realize that much of the economic and social problems we are facing today were predicted well in advance of their happening.

Ash, you're taking everyone's arguments too far. Most people would agree that the wholesale elimination of the patent system is a bad idea. You're fighting a straw man, and a pretty weak one at that. What is called for, however, is reform of the bad parts - e.g., obvious patents that slip through the cracks, software patents, and business method patents.

Can you make a cogent argument that pursuing those reforms would ruin everything and make you want to live in China?

And to make my response complete, I never said anyone was suggesting a wholesale elimination of the patent system. My point is that removing the brokers would vitiate the rights of small inventors and the unintended consequence of that would be the deterioration of the patent system.

Many people have tried to argue that "business method patents" and "software patents" are somehow a special class of methods that deserve special albeit poor treatment. However, anyone that has tried to propose a rule or a system to delineate between software patents and other methods can't do it. You're welcome to try. Maybe you can come up with something that the entire patent community has failed realize.

You refer to obviousness patents that "slip through the cracks". However, this statement usually comes from an infringer grasping at straws. RIM argued for years that the push email patents "just slipped through the cracks." The question I have for RIM and others making similar statements is, if you think the patent office screwed up, how is it that a district court judge and the federal circuit determined the patent was valid and infringed. Maybe the tens of millions that were spent interpreting the patent and hiring expert witnesses to explain it just wasn't enough effort to realize how the patent office just botched it. And if the Courts can't get it right after spending that kind of money, how do you propose funding this investigation at the patent office for every patent that gets issued? It is pure foolishness to think that you can legislate a bright line rule for obviousness. It can't be done. We have 225 years of jurisprudence developing our current patent law. The puppets in Congress aren't going to fix anything. They are going to break the system for whoever pays them the most money.

You could, but people have to be open to reason and be able to admit they might be wrong in order to be willing to change their position.

But thank you for the well reasoned comments and the examples. As you pointed out (and was pointed out to me years ago and has stuck with me every since and I also point out) of the very few things the founding fathers put into the US Constitution, patents were considered key to the success of the country!

I wish more people would actually read the US Constitution (whether you are an American or not is irrelevant) - much like with Apple, what was left out is just as significant or more significant than what was put in. It really is a fairly simple document - but the concepts and framework it established founded the greatest nation this world has yet to see. I keep hoping we don't screw it up by overcomplicating things but the current bunch in Washington seems hell-bent on doing exactly that by expanding the federal government far larger than was ever intended. And for many of the repercussions we are now experiencing - if people were also not as ignorant as to the reasons the founding fathers originally established the federal/state government ratios they would realize that much of the economic and social problems we are facing today were predicted well in advance of their happening.

You raise a really good point, which is that there is suppose to be a federal/state balance. Too often these days everyone looks to the Federal government to solve all their problems. There is a belief that perfection can be achieved if we could just get Congress to pass the right laws. I disagree. We are better off accepting that there is no perfect solution. The best we can do is a proper balance.

The reason our economy beat the British economy in the 1800s is because we had thousands of "nobodies" trying to get patents on mechanical devices like steam engines.

Until well in to the 20th century US ignored patents from elsewhere in the world. US 'inventors' copied patents from Britain and elsewhere and patented them in USA.

There are many reasons why the US economy beat the British, theft of IP would be one, energy costs another, the ability to colonize more of the same land mass without having to sail to another continent, size of population etc etc.

Secondly, in the United States there never has been a rule against patenting "software methods". In the early 80s there was uncertainty about how to draft proper "software" claims and whether the claims would be enforceable. However, uncertainty isn't the same thing as saying that software wasn't patentable.

In all but a few cases software was not patentable until the Supreme court decision that changed the interpretation of patent law, because mathematics hadn't been patented and software was held to be no more than concrete examples of mathematics. No more than a handful of software patents were issued each year prior to that decision and even fewer of them were ever asserted. Patents simply didn't matter, but it didn't stop people from inventing high level languages, or modern OSes or new classes of productivity applications.

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Thirdly, the major driving force behind software in the 80s was the need to operate new hardware. Patent attorneys knew how to draft patent claims to the hardware and since the software was tied to the hardware, it made sense to claim the hardware. But make no mistake, the patent system was a huge part of the advancement of the software industry. It took some time, but patent attorneys eventually developed techniques for claiming computer-implemented methods (i.e., software) and courts resolved the ambiguity in favor of patentability.

Pure and utter rubbish. In the 80s the growth was in personal computers which were not dedicated devices but general purpose, there was no reason whatsoever to write patents as hardware patents other than the fact that it made the patents more likely to stand. Did you even use a computer in the 80s? The patent system had no relevance to the development of the software industry. You won't find a single early patent on the spreadsheet, the wordprocessor, etc. I know that there was one on a memory management algorithm used in Unix, and one on huffman encoding but those were easily avoided because they covered specific algorithms, not general purpose 'methods' that described any class of algorithm solving the problem. They weren't software patents as we now understand them.

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So you want evidence that the patent system works for software? How about the fact that the software industry exploded in the U.S. as compared to Europe. .

That would be a valid argument if the software industry hadn't exploded in the US and not Europe before patents were commonly granted on patents in software even in the US. If you could show that until the 80s American software was only on par with European, and that afterwards it took off - you would have a case.

But you can't. because it didn't - you don't have a case, you have wishful thinking.

The existence of the dominant US software industry is no more proof that software patents are key than the existence of the dominant US movie and television industries are proof that the EU is missing key IP protection in those industries - it's only proof that the large US market was and is a huge advantage.

In all but a few cases software was not patentable until the Supreme court decision that changed the interpretation of patent law, because mathematics hadn't been patented and software was held to be no more than concrete examples of mathematics. No more than a handful of software patents were issued each year prior to that decision and even fewer of them were ever asserted. Patents simply didn't matter, but it didn't stop people from inventing high level languages, or modern OSes or new classes of productivity applications.

Pure and utter rubbish. In the 80s the growth was in personal computers which were not dedicated devices but general purpose, there was no reason whatsoever to write patents as hardware patents other than the fact that it made the patents more likely to stand. Did you even use a computer in the 80s? The patent system had no relevance to the development of the software industry. You won't find a single early patent on the spreadsheet, the wordprocessor, etc. I know that there was one on a memory management algorithm used in Unix, and one on huffman encoding but those were easily avoided because they covered specific algorithms, not general purpose 'methods' that described any class of algorithm solving the problem. They weren't software patents as we now understand them.

That would be a valid argument if the software industry hadn't exploded in the US and not Europe before patents were commonly granted on patents in software even in the US. If you could show that until the 80s American software was only on par with European, and that afterwards it took off - you would have a case.

But you can't. because it didn't - you don't have a case, you have wishful thinking.

The existence of the dominant US software industry is no more proof that software patents are key than the existence of the dominant US movie and television industries are proof that the EU is missing key IP protection in those industries - it's only proof that the large US market was and is a huge advantage.

Ok, admittedly my arguments were weak in those three respects.

I still haven't had anyone present a cogent argument as to why computer methods shouldn't be patentable. The idea that we didn't need them to get the industry started isn't persuasive. That would be like saying we aren't going to allow patents related to boats because the boating industry started without a patent system.

Consider the fact that as software becomes more sophisticated, it will require more investment to invent and consequently more need for patents. Also, I think disallowing patents on software is really short-sighted. The industry will mature in the next decade or so and all those patents are going to expire and be dedicated to the public. I see no harm in that. The detrimental affects of letting Congress muck up the patent system isn't worth the inconvenience placed on a few software developers. Luckily there are enough other industries where business value patents that I can hope the patent system doesn't get ruined.

If software patents are done away with, all the software engineers will get what they deserve. Everyone will copy your stuff. You might not think that is a big deal, but when I hire a dude from India to copy your software and then out spend you on advertising and take your market share, you won't care right? Or maybe you won't. Maybe all these people complaining about software patents are the kind of people that right crappy software that no one cares to copy.

What a dumb shit. Is that the most intelligent thing you can say? You're the kind of person that can only bitch about a lawyer because if you ever had to compete intellectually with a lawyer you would get your ass kicked. There are plenty of people on this site that disagree with me and have something intelligent to say. You're comment is a disgrace. Why don't you go hang out in a yahoo blog with other thoughtless 15 year olds.

Are they going to go after Apple? After all Apple did just buy a load of patents for things they didn't invent themselves and will now probably charge people to use the technology.

This is exactly my point. Since Apple has a sales team and manufacturing facility, we deem them worthy of being able to enforce a patent. It seems ridiculous to me that we would draw a distinction between practicing inventors and non-practicing inventors. The reality is inventing doesn't have anything to do with selling. The only reason we do it is because the software patent phobes use it as a tactic to inhibit the patent system.

You know, Ash, your argument almost holds water, except the problem is most of these patents are obvious computer techniques that are broad concepts, not some brand new idea. For example, one patent that the trolls have used against Apple, Microsoft, and others is the concept of "downloading software over a medium [let's say, in this case, the Internet] to update a program or operating system." Really?! Yup, that's certainly inventive, no one would've EVER come up with that idea!

And these patent holders are NOT inventors, as you like to refer to them. With companies like Lodsys, the business plan is to sue. They could care less about "defending" their patent they purchased. They *want* companies to infringe on their patents.

The old traditional "invention" doesn't aptly apply to software. Unlike brand new physical inventions, in software, everything is built upon prior art. Everything. In software, it's all how the blocks are re-arranged to come up with something new. Even the original Apple I, the computer that kick-started the entire personal computer industry, was not "invented" out of thin air.

Thanks for the intelligent discussion. You argue your side very well, but I am always left feeling oddly unsatisfied--that something is missing. That something about how we connect the dots between the wholesale trading of patents for its own sake and the protection and fostering of individual inventors. You seem to throw your hands up and take the position that any tinkering withe the status quo, any effort to rejigger and improve, will inevitably be a bad thing.

Beyond that is simply that I must consider the source of your argument. Since it appears your livelihood depends on the status quo, I should assume you have a strong bias. You are an advocate, not a neutral broker of ideas on this matter. I must assume that your income increases in proportion to the complexity of the law and practice of patent defense.

Since you have also said that you are not opposed to reform, I would like to hear what reforms you think are necessary. Even those that might make less business for you.

What a dumb shit. Is that the most intelligent thing you can say? You're the kind of person that can only bitch about a lawyer because if you ever had to compete intellectually with a lawyer you would get your ass kicked. There are plenty of people on this site that disagree with me and have something intelligent to say. You're comment is a disgrace. Why don't you go hang out in a yahoo blog with other thoughtless 15 year olds.

You have to have a thick skin and a sense of humor around here. Don't take it personally, especially since the joke really wasn't very good.

Personally I find the one about why lawyers wear neckties to be much funnier. . .